Tuesday, August 19, 2014

No Summary Judgment Based on Late Disclosed Noninfringement Argument

The court denied defendant's motion for summary judgment of noninfringement of plaintiff's HVAC patent. "[Defendant] argues that it cannot be liable for direct infringement because it only sells individual HVAC units, not HVAC systems, and the [patent-in-suit] requires an HVAC system that is operational. . . . [I]t was not until 11:19 p.m. on the last day of fact discovery . . . that [defendant] added this contention as a defense, by supplementing its interrogatory response on non-infringement. . . . The parties are represented by highly regarded patent lawyers. How can it be that a fundamental contention - defendant does not sell the accused system - was not even identified by either party until the last minutes of fact discovery? Indeed, the record is bereft of all meaningful evidence relating to this issue, with [plaintiff] arguing that it had no notice of the contention and, therefore, no opportunity to pursue related discovery, and [defendant] arguing that it had no responsibility to give any more notice of its defense than it did because it is [plaintiff's] ultimate responsibility to prove direct infringement. . . . [Defendant] equivocated and failed to provide any evidence (like sales figures) that could have alerted [plaintiff] to the issue. [Defendant] did not play by the rules; therefore, it must suffer the consequences. [Defendant's] motion for summary judgment is denied in this regard. The court will address at the pretrial conference whether [defendant] will be precluded from presenting such a defense at trial."

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Rubin Anders

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reads every patent infringement litigation docket sheet in the US district courts every day. The posts you see here are a small sampling of the Docket Report...see every noteworthy event in current patent litigation, complete with free links to the underlying orders, by subscribing to the Docket Report daily newsletter.